Citation Nr: 18129019 Decision Date: 08/23/18 Archive Date: 08/23/18 DOCKET NO. 13-21 694 DATE: August 23, 2018 ORDER A temporary total evaluation based on the need for convalescence from October 29, 2012, through March 31, 2013, for posterior spinal fusion is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Resolving the benefit of the doubt in the Veteran’s favor, the evidence demonstrates that the Veteran’s October 29, 2012, posterior spinal fusion resulted in the need for doctor-mandated convalescence through March 31, 2013. CONCLUSION OF LAW The criteria for a temporary total evaluation for the Veteran’s October 29, 2012, posterior spinal fusion surgery have been met based on the need for convalescence through March 31, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 from July 1977. In September 2016, the Veteran testified at a Board of Veterans’ Appeals (Board) videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was remanded by the Board in July 2017. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that a temporary total evaluation should be awarded based on his need for convalescence following an October 29, 2012, surgery performed to treat his service-connected back disability. The provisions governing convalescent ratings are set forth in 38 C.F.R. § 4.30. The regulations provide that a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Extensions of 1, 2, or 3 months beyond the initial 3 months may also be granted based on the same criteria. 38 C.F.R. § 4.30(b)(1). In order to attain the temporary total disability rating, a veteran must demonstrate that service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations; therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. Pursuant to 38 C.F.R. § 4.30, the disability requiring hospitalization or convalescence must be service connected. The Board notes that notations in the medical record as to a Veteran’s incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provision of 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden v. West, 11 Vet. App. 427, 430 (1998). Furthermore, the term “convalescence” does not necessarily entail in-home recovery. Upon review, the Board finds that the criteria for a temporary total evaluation have been met from October 29, 2012, through March 31, 2013, for doctor-mandated convalescence following the Veteran’s posterior spinal fusion for treatment of the service-connected back disability. The Veteran has consistently, competently, and credibly indicated that he required approximately 4 to 6 months of convalescence following his October 29, 2012, spinal fusion and that he was unable to work during this time. Additionally, the Veteran’s treating physician, J.A. provided a statement indicating that the Veteran required 4 to 5 months of recuperation from the surgery, and that some patients required up to 6 months. The Board finds the opinion of the Veteran’s treating physician that the Veteran required approximately 5 months of convalescence very probative. See Felden, 11 Vet. App. at 430. While the time frame given by J.A. for convalescence was not exact, the Board finds that the evidence demonstrates that entitlement to a temporary total evaluation based on the need for convalescence from October 29, 2012, through approximately March 31, 2013, is warranted. The Board notes that this grant represents an initial 3-month total temporary evaluation as well as a 2-month extension pursuant to 38 C.F.R. § 4.30(b)(1). While the Board would have the authority to grant an additional 1-month temporary total evaluation if appropriate, the Board finds such is not warranted in this case. In that regard, J.A. stated that, while some patients required up to 6 months of recovery following similar procedures, the Veteran required only up to 5 months of recuperation following the surgery. To the extent that the Veteran has stated that he required 6 months of convalescence, there is no medical evidence to support his assertion and the Board finds the statement of J.A. to be more probative. Accordingly, resolving the benefit of the doubt in the Veteran’s favor, a temporary total evaluation based on the need for convalescence from October 29, 2012, through March 31, 2013, is granted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. D. Bruce, Counsel